In grenzüberschreitenden elterlichen Sorgerechtskonflikten werden die Vorteile von Mediation im Hinblick auf das Wohl des Kindes weithin anerkannt und geschätzt. In verschiedenen empirischen Studien konnte gezeigt werden, dass Mediation in internationalen Sorgerechts- und Kindesentführungsfällen einen positiven Einfluss auf das Wohlergehen von Kindern hat, dass Mediation die Kommunikationsfähigkeiten der Eltern verbessert und positiv auf deren Fähigkeit, gemeinsam als Eltern zu agieren, gewirkt hat. Es ist demnach entscheidend, dass Vereinbarungen, die in einer Familienmediation in einem EU-Staat geschlossen werden, in dem anderen EU-Mitgliedsstaat rechtlichverpflichtend und vollstreckbar gemacht werden können.
Nichtsdestotrotz gibt esgroße Unsicherheit, wie eine grenzüberschreitende Anerkennung und Vollstreckbarkeit von mediierten Vereinbarungen gewährleistet werden kann, insbesondere wenn diese Vereinbarungen eine Reihe von Themen gleichzeitig behandeln, wie z.B. Angelegenheiten elterlicher Verantwortung, Unterhaltsregelungen und andere damit verbundene Themen. Derzeit sind weder EU- noch internationale Rahmen verfügbar, die die Anerkennung und Vollstreckbarkeit dieser mediierten ‚Gesamtpaket-Vereinbarungen‘ ermöglichen.
Die jeweiligen in der Vereinbarungen einbezogenen Themen fallen also in den materiellen Anwendungsbereich verschiedener internationaler und EU-Instrumente und basieren als Konsequenz daraus auf unterschiedlichen Regeln der Anerkennung und Vollstreckbarkeit. Zudem ist das EU-System der Anerkennung und Vollstreckbarkeit entgegen der EU-rechtlichen Ermutigung von einvernehmlicher Konfliktlösung entscheidungsfokussiert und bietet keine ganzheitlichen Lösungen, um Übereinkünfte innerhalb der EU zirkulieren zu lassen. Eine weitere Schwierigkeit entsteht aus der Tatsache, dass riesige Unterschiede zwischen nationalen verfahrensrechtlichen Gesetzgebungen der EU-Mitgliedsstaaten bestehen im Hinblick auf die rechtliche Wirksamkeit dieser Vereinbarungen. Es besteht ein Mangel an klaren Richtlinien bezüglich der verschiedenen nationalen verfahrensrechtlichen Anforderungen für die Vollstreckbarkeit mediierter Vereinbarungen.
Ziel des AMICABLE-Projekts ist es, ein EU-spezifisches Tool zu entwickeln, das dabei hilft, mediierte ‘Gesamtpaket-Vereinbarungen’ in allen involvierten Staaten rechtlich bindend und vollstreckbar zu machen. Das Tool wird relevante EU-Instrument in Betracht ziehen, wie die Brüssel IIa Verordnung (und die BRIIa Neufassung), die EU-Unterhaltsregelung und die EU-Mediationsdirektive. AMICABLE fußt auf der bereits durch die Haager Konferenz für Internationales Privatrecht (HCCH) geleisteten Arbeit in diesem Bereich.
Das EU Best Practice Tool wird als Vorlage für die nationalen Best Practice Tools dienen, die in einem nächsten Schritt in diesem Projekt für unsere Partnerländer Polen, Spanien, Italien und Deutschland entwickelt werden. Die nationalen Best Practice Tools werden tiefergehend erforschen, welche Optionen in nationalem Recht existieren, um eine mediierte Vereinbarung vollstreckbar zu machen, und welche EU-rechtliche Vorgehensweise für die dementsprechenden auf nationaler Ebene möglichen Ergebnisse geeignet ist. Die vier länderspezifischen Best Practice Tools werden detaillierte Hilfestellung bieten, um ‚Gesamtpaketübereinkünfte‘ in den jeweiligen Ländern rechtlich verbindlich und vollstreckbar zu machen. Zusammen betrachtet, bieten die nationalen Best Practice Tools so einen vergleichenden rechtlichen Überblick, der dazu beiträgt, sowohl Problemstellungen als auch bewährte Verfahren zu identifizieren.
Das EU Best Practice Tool wird hier kostenlos nach der Publikation auf den nationalen Seminaren im Frühjahr 2020 veröffentlicht.
Abbreviation
International familyagreement
For the purpose of this Best Practice Tool aninternational family agreement will be defined as: An agreement regulating afamily situation with an international element involving children dealing withmatters of parental responsibility and / or maintenance and possibly othermatters.
Parental responsibility
The term parental responsibility will be used in this BestPractice Tool as defined in Article 2, Nos 7 et seq. of the Brussels IIa Regulation and “shall mean all rights and duties relating to the person or the propertyof a child which are given to a natural or legal person by judgment, byoperation of law or by an agreement having legal effect. The term shall includerights of custody and rights of access.”
Maintenance
Matters of maintenance used in this Toolwill comprise child and spousal / ex-spousal maintenance. For the important differentiation of spousal maintenance from property matters reference is made to the decision of the Courtof Justice of the European Union (hereinafter, “CJEU”) in Van den Boogaard v. Laumen (C-220/95). The CJEU had to decide alump sum payment was to be considered “maintenance” in the sense of theBrussels Convention, a European legal instrument later transformed into theBrussels I Regulation and now replaced, in respect of maintenance, by the EUMaintenance Regulation. The CJEU set forth that the lump sum payment wouldqualify as maintenance if the reasoning gave indication that it was “designed to enable one spouse to provide forhimself or herself or if the needs and resources of each of the spouses [were] takeninto consideration in the determination of its amount”.
Court and court
decision The term “court” will, unless otherwise specified, be used in thistool to cover also certain non-judicial authorities, which have jurisdictionunder the European and international legal instruments for matters fallingwithin the scope of these instruments.The term “court decision ” is, unless otherwisespecified, used in this tool to comprise any form of court decision whatever itmay be called, including judgements and orders.
Authentic instrument
Theterm ‘authentic instrument’ as used in this tool means a document which hasbeen formally drawn up or registered as an authentic instrument in a MemberState and the authenticity of which;
(i)relates to the signature and the content of the authentic instrument; and
(ii)has been established by a public authority or other authority empowered forthat purpose by the MemberState of origin.
Homologation
The term “homologation” is used very differently in national law andmight roughly be described as a simplified process provided by some nationallaws to render agreements on a certain subject matter legally binding /enforceable. In some legal systems this may be a process by which an agreementis approved by court following an examination of the substance; in others, theprocess might not include a test to the content of the agreement. There is noautonomous European interpretation of the term “homologation” and the term doesnot find explicit mention in European family law instruments. The National BestPractice tools will explain what is understood in national by “homologation”should such a process exist in the relevant legal system and characterise theoutcome in view of requirements set up by European and international legalinstruments for a cross-border recognition.
Solving international family disputes by agreement or setting upinternational family agreements to prevent disputes from occurring in thefuture is generally beneficiary to all concerned. International, European andnational legal framework encourages family mediation and similar means ofamicable dispute resolution to bring about such agreed solutions. However, oncean agreement is obtained outside ongoing legal proceedings it is often notevident to the parties what legal standing the agreed result has. Even for agreements in a purely national context there can be quite some uncertainty -not to speak of the cross-border validity of such agreements. Parts of the agreement might have immediate legal validity if theyfulfil necessary requirements for the conclusion of a contract on the matterconcerned in a legal system; others, such as matters relating to custody, mightnot be validly agreed upon without the approval of an authority. Someagreements are expressly drawn up as mere memorandum of understanding to avoid any immediate legal effects and an unwanted partial effect of the agreementbefore the respective lawyers take the necessary steps to render the completeagreement binding. Once the agreement is legally binding in a given legalsystem, additional steps may be required to render the agreed solution enforceable in that legal system. The options available to render an agreement legallybinding and enforceable will depend on the relevant national law. It maybe thatthe agreement will have to be included in a court decision, be homologated orapproved by an authority or registered in a certain way.International and regional and bilateral legal framework can assistin making the agreement “travel” cross-border by providing simplified rules for cross-border recognition and enforcement. The Best Practice Tool will focus on agreements concerning mattersof parental responsibility and maintenance but will also touch upon related matters. While the Best Practice Tool will concentrate on cross-bordersituations inside the EU, cases in which enforcement of an agreed solution outside the EU might be required cannot be left unconsidered. The Best Practice Tool takes note of the work undertaken in this field by the Experts’ Group[1] ofHague Conference on Private International Law tasked to develop a non-binding‘navigation tool’ to provide best practices on how an agreement made in the area of family law involving children can be recognised and enforced in a foreign State under the 1980, 1996 and 2007 Conventions. National Best PracticeTool introductory remarks …
[1] See the Revised draft Practical Guide: Cross-border recognition and enforcement of agreements reached in the course of family matters involving children, available at theHague Conference website at.
The European Best Practice Tool will set forth how applicableEuropean and international legal framework relating to matters of parentalresponsibility and maintenance as well as related matters can assist inrendering international family agreements legally binding and enforceable inall legal systems concerned. The European Best Practice Tool will equallyindicate where national law comes to play a role. The National Best PracticeTools (for Germany, Italy, Poland and Spain) will explore the relevant nationallaw provisions using the European Best Practice Tool as a template. It willalso be the National Best Practice Tools that will bring clarity to questionsof characterisation of processes offered by national law to render familyagreements binding in order to justify the usage of available avenues forcross-border recognition offered by European and international legal framework.In view of the two main avenues offered by modern European andinternational legal framework for cross-border recognition, the Best PracticeTool distinguishes the following two main methods to make the agreement or itscontent travel cross-border:
Method A: Using themechanisms of European and international legal framework for cross-borderrecognition of “decisions”Method B: Using the mechanisms of European and international legal framework forthe cross-border recognition of “authentic instruments” / “enforceableagreements”
For international child abduction cases, the Best Practice Tool willexplored how family agreements concluded while Hague return proceedings areongoing and aiming to end the abduction situation can best be rendered legallybinding and enforceable. The particular challenges of Hague proceedings and especiallythe tight time requirements to end the Hague proceedings as well as the specialrules for international jurisdiction on custody matters are setting the scene. The Best Practice Tool will give guidance for the following familysituations:
Overview Sorted by Subject Matter
A brief overview shall be given of applicable international andEuropean legal framework containing rules on international jurisdiction,applicable law and / or recognition and enforcement. The following table lists the relevant instruments sorted by subject matter and set of rules.
Overview of geographic Scope
The following table provides an overview of the geographic scope of the abovelisted instruments with some details on the scope of application of certainparts of these instruments.
Apart from the above listed instruments of private internationallaw, a number of human rights instruments that influence the interpretation ofand the practice under these instruments in Europe must be mentioned. As willbe detailed when exploring the European and international legal framework, therequirement to observe certain fundamental children’s rights may influence thecross-border recognition of family agreements.
The United Nations Conventionof 20 November 1989 on the Rights of the Child (hereinafter “UNCRC”), whichestablishes fundamental principles for the protection of children’s rights withparticular attention given to children’s rights in cross-border family matters,has been ratified by all EU Member State. Particularly, the Contracting States’obligation to guarantee that the best interests of the child be a primaryconsideration in our actions concerning children (Article 3 UNCRC) as well asthe right of the child to be heard and have his / her views taken intoconsideration in accordance with the age and maturity of the child (Article 12UNCRC) have shaped national, European and international legal framework in thearea of family law in the past years.
Article 24 of the Charter of Fundamental Rights of the European Union (2010/C 83/02) integrates these fundamentalchildren’s rights set forth in Article 3 and 12 UNCRC into EU law. With thebinding force given as of 2009 to the Charter of Fundamental Rights of theEuropean Union, the obligation to guarantee these rights has now become part of binding EU law.
Furthermore, all EU Member States are Parties to the Convention for the Protection of HumanRights and Fundamental Freedoms of 4 November 1950 which sets forthfundamental rights and freedoms, including the right to respect for private andfamily life, Article 8. The European Court of Human Rights in Strasbourg establishedto ensure the observance of the State Parties’ engagements has at variousoccasions where individual complaints alleged a breach of Article 8 EHCR (rightto respect for family life) underpinned the UNCRC principle that the bestinterests of the child must be a primary consideration in all actionsconcerning the child and that the child must be opportunity to be heard.
Finally, the EuropeanConvention on the Exercise of Children's Rights of 25 January 1996 whichaims to protect the best interests of children and promotes the exercise ofchildren’s rights in legal proceedings concerning the child. This Convention isopen for signature by all Council of Europe Member States as well as non-MemberStates that have participated in the Convention’s elaboration. Currently(status 12 July 2019), the Convention has 20 State Parties, including Austria, Croatia,Cyprus, Czech Republic, Finland, France, Germany, Greece, Italy, Latvia, Poland,Portugal, Slovenia and Spain.
Relevant Instruments,scope and interrelation
Matters of parental responsibility fallwithin the substantive scope of both the BrusselsIIa Regulation and the 1996 HagueChild Protection Convention.
The 1996 Hague Convention contains rules on international jurisdiction, applicable law and recognition and enforcement. TheBrussels IIa Regulation contains rules on international jurisdiction, which are to a large extent identical with those of the 1996 Hague Convention, and ruleson recognition and enforcement, which go further than those of the 1996 HagueConvention in facilitating the circulation of decisions on parental responsibility.
All EU Member States, except Denmark, are bound by the Brussels IIaRegulation. The 1996 Hague Child Protection Convention has worldwide 51Contracting State (status 15 July 2019) including all EU Member States, i.e. also Denmark. The Brussels IIaRegulation prevails over the 1996 Hague Convention within its scope of application.
On 25 July 2019 the BrusselsIIa (recast) Regulation has been adopted. The Regulation has the same substantive and geographic scope of application as the Brussels IIa Regulation which it will replace as of 1 August 2022 for proceedings instituted as of that date as well for authentic instruments formally drawn up or registered and agreements registered as of that date. The Brussels IIa (recast) Regulation contains rules on international jurisdiction and on recognition and enforcement; differences to the predecessor Regulation will be pointed out below. The new Regulation will have the same interrelation with the 1996 HagueConvention as the predecessor Regulation, although certain issues formerly left to interpretation are now clarified in Article 97 of the Brussels IIa (recast) Regulation.
For cases of wrongful cross-border retention or removal of children, the 1980 Hague Child AbductionConvention sets up expeditious return proceedings in all ContractingStates. Worldwide the Convention is in force in 100 States (status 15 July2019) including all EU Member States. The Brussels IIa Regulation contains special rules of international jurisdiction for cases of wrongful cross-border removal or retention of children and an additional set of rules that is to be observed in international child abduction cases falling within the scope of the1980 Hague Convention. The Brussels IIa (recast) Regulation adds some nuance to the rules contained in the predecessor Regulation regarding international child abduction cases and further elaborates the additional set of rules for child abduction cases, both of which will be described below.
Internal Juresdiction
Courts in EU Member States, except Denmark, are bound by the international jurisdiction rules of the Brussels IIa Regulation in matters of parental responsibility. This means, they can only embody the content of a parental agreement on these matters in a decision if they have internationaljurisdiction. Once the decision is rendered it can freely circulate in all other EU Member States bound by the Regulation without that jurisdiction can bequestioned later on (see Article 24 Brussels IIa Regulation). International jurisdiction on matters of parental responsibilitylies, as a general rule, with the authorities in the State of habitualresidence of the child, Article 8 Brussels IIa Regulation (Article 5 of the1996 Hague Convention contains the same general rule). Deviations from the general rule are regulated in Articles 9, 10 or12 of the Brussels IIa Regulation. Article 9 of the Brussels IIa Regulationforesees a continuing jurisdiction of the child’s former habitual residence formodifying decisions on contact issued in that State before a child relocated(there is no equivalent of this rule in the 1996 Hague Convention). Article 10of the Brussels IIa Regulation applies in cases of international childabduction and is modelled on Article 7 of the 1996 Hague Convention (see furtherbelow under “international child abduction cases”). Article 12 of the BrusselsIIa Regulation allows for prorogation of international jurisdiction on mattersof parental responsibility under certain circumstances when divorce proceedingsongoing (a similar rue is contained in Article 10 of the 1996 HagueConvention). Article 15 of the Brussels IIa Regulation allows for a transfer ofinternational jurisdiction on matters of parental responsibility to the courtbetter placed to hear the case (a transfer of jurisdiction is also possible inaccordance with Articles 8 and 9 of the 1996 Hague Convention).Furthermore, Article 20 of the Brussels IIa Regulation provides fora basis of international jurisdiction in for provisional measures (a similarrule is contained in Article 11 of the 1996 Hague Convention).The Brussels IIa (recast) Regulation will bring a number of smallerchanges to the rules of international jurisdiction in matters of parentalresponsibility (JH: textwill follow)….
Applicable Law
Contrary to the 1996 Hague Child Protection Convention, the BrusselsIIa Regulation does not contain any rules on applicable law. Thus there is nopredominance of EU-internal rules over the 1996 Hague Convention in this regardand the law applicable to matters on parental responsibly is determined inaccordance with Article 15 of the 1996 Hague Convention. As a general rule,authorities with international jurisdiction on matters of parentalresponsibility apply their own law (“lex fori”) Article 15(1) of the 1996 HagueConvention.[1]
[1] To be precise, Article 15(1) of the 1996 Hague Convention providesthat the authority “exercising their jurisdiction under the provisions ofChapter II” of the Convention shall “apply their own law”. As stated above therules on international jurisdiction of the Convention are superimposed bypredominant and to a large extent identical EU rules. A teleologicalinterpretation of Article 15(1) of the 1996 Hague Convention should thereforeallow the EU authorities havinginternational jurisdiction in accordance with the Brussels IIa Regulationto apply their own law.
Recognition and enforcement within the EU (except Denmark)
Once the content of an agreement is turned into a court decision in an EU Member State, except Denmark, the agreement will automatically be recognised in all other EU Member States bound by the Regulation (Article 21Brussels IIa Regulation). Upon application of any interested party the decision will be declared enforceable and can then enforced in accordance with the national enforcement law of the relevant State. Certain decisions on parental responsibility, namely decisions on rights of access preferred to in Article40(1)(a) of the Regulation, are enforceable without the need for a declaration of impossibility (exequatur) (Article 41 of the Regulation). This however requires that a certificate using the standard form in Annex III of theRegulation has been issued by the judge of origin of the decision.In accordance with Article 46 of the Brussels IIa Regulationen forceable authentic instruments as well as enforceable agreements cancirculate between the States bound by the Brussels IIa Regulation under the same conditions as judgements.
Recognition and enforcement outside the EU (In Denmark)
For the recognition and enforcement of a court from a Brussels IIaState in a State not bound by the Regulation, i.e. States outside the EU orDenmark, the 1996 Child Protection Convention can be used provided the State inwhich recognition and thought is sought is a Contracting State to the Convention.In accordance with Article 23 of the Convention, the court decision is recognised by operation of law in all otherContracting States. Limited grounds of non-recognition are listed in Article 23(2)of the Convention. To dispel doubts the enforceability of a measure of childprotection, an advance recognition in accordance with Article 24 Convention canyou applied for.
Internal Child abduction cases
For cases of wrongful cross-border retention or removal of children,two important questions have to be distinguished: (1) How can the speedy return of the child be achieved? (2) Which country’s courts have international jurisdiction on matters of parental responsibility in the situation of international child abduction? The 1980 Hague ChildAbduction Convention provides an answer to the first question, setting up expeditious return proceedings, which are proceedings “sui generis” and are without prejudice to the determination of custody. The Brussels IIa Regulationprovides in its Article 11 an additional set of rules for international child abductioncases inside the EU. The second question finds ananswer in Article 10 of the Brussels IIa Regulation, which provides (as Article7 of the 1996 Hague Convention) that “the courts of the Member State where thechild was habitually resident immediately before the wrongful removal orretention shall retain their jurisdiction” on matters of parentalresponsibility in a situation of child abduction. A shift jurisdiction occurswhen the child has acquired a habitual residence in another Member State and eachperson, institution or other body having rights of custody has acquiesced inthe removal or retention or the conditions of Article 10 b) are met.
Relevant instruments, scope and interrelation
Matters of maintenance of Child and spousal maintenance fall withinthe substantive scope of the Maintenance Regulation and a number ofinternational instruments, including the 2007 Hague Maintenance Convention, theLugano II Convention, the 1973 Hague Convention, the 1958 Hague Convention, the1956 New York Convention[1]. The Maintenance Regulationis applicable as of 18 June 2011 in all EU Member States, including Denmark.However, for Denmark the Regulation applies only partially (the Chapters IIIand VII are not applicable). The Maintenance Regulation contains rules oninternational jurisdiction, recognition and enforcement and on Central Authority – cooperation.Furthermore, by reference, the Maintenance Regulation incorporates into EU law theapplicable law rules of the 2007 HagueProtocol for all EU States bound by the Protocol, namely all EU MemberStates except Denmark and the UK. The international “equivalent” to the EuropeanMaintenance Regulation is the 2007 HagueMaintenance Convention, which is in force in the EU, Denmark, since 1August 2013. The 2007 Hague Convention does however neither contain a referenceto the applicable law rules of the 2007 Hague Protocol nor direct rules oninternational jurisdiction, but instead indirect rules of jurisdiction in theChapter on recognition and enforcement. A further difference between theEuropean Maintenance Regulation and the 2007 Hague Convention is thesubstantive scope. While the former is applicable to all forms of “maintenanceobligations arising from a family relationship, parentage, marriage or affinity”(Article 1(1) Maintenance Regulation), the latter is, in accordance with thedefault scope of application only applicable to child maintenance and to someextent to spousal maintenance (Article 2 of the 2007 Hague Convention). Thescope of the 2007 Hague Convention can however be extended by those joining theConvention and the EU has indeed extended the scope regarding spousalmaintenance[2]. Nonetheless, the Conventionapplies between any two States bound only with regard to the reciprocal scope.
[1] UN Convention on the Recovery Abroad of Maintenance of 20 June1956.[2]When joining the 2007 Hague Convention, the EU declared: “to extendthe application of Chapters II and III of the Convention to spousal support whenthe Convention enters into force with regard to the Union”, see furtherregarding the declarations of the EU the Hauge Conference Website under: <https: www.hcch.net="" en="" instruments="" conventions="" status-table="" notifications="" ?csid="1109&disp=resdnthe">(last consulted 15 July 2019).</https:>
The Maintenance Regulation prevails over the 2007 Hague Conventionwithin its scope of application.
International Jurisdiction
Authorities in EU Member States including Denmark are bound by the rulesof the Maintenance Regulation on international jurisdiction in matters of maintenance.These rules are at the same time rules of local jurisdiction. They are meant tobe conclusive and apart from leaving a minor scope of application to thejurisdiction rules of the Lugano II Convention, are meant to exclude theapplication of any other rules on international jurisdiction, in particularnational rules.Authorities in an EU Member State can only embody the content of aparental agreement on matter of maintenance in a decision if they haveinternational jurisdiction under the Regulation. The Regulation provides in its Article 3 for are a number ofalternative grounds of jurisdiction, including the creditor’s habitual residenceand the defendant’s habitual residence. Furthermore, jurisdiction in connectionwith divorce or custody proceedings is possible. As soon as a court withjurisdiction under the Regulation is seized, no other court can assumejurisdiction on matters covered by the Regulation (Art 12 of the Regulation). The 2007 Hague Maintenance Convention does not contain direct ruleson jurisdiction, but makes recognition of foreign maintenance decisionsdependent on the respect of certain indirect rules of jurisdiction, see belowunder recognition and enforcement.
Applicable by Law
The law applicable to maintenance obligations is determined inaccordance with Article 15 of the Maintenance Regulation in connection with the2007 Hague Protocol on the law applicable to maintenance obligations. TheUnited Kingdom and Denmark are not bound by the Hague Protocol, the uniformapplicable law rules therefore do not apply for these States. As a general rule, maintenance obligations are governed by the lawof the State of the creditor’s habitual residence, Article 3 of the 2007 HagueProtocol. For child maintenance special rules apply. Article 4 of the Hague Protocolcontains a tree-step cascade to determine the applicable law which provides twofall-back options should child maintenance not be obtainable in accordance withthe primarily applicable law.For spousal and ex-spousal maintenance, Article 5 of the HagueProtocol contains a special rule of defence, in accordance with which a spousecan oppose the application of the law of the creditor’s habitual residenceshould another law have a closer connection with the marriage.
Recognition and enforcement within the EU
Once the decision is rendered it is automatically recognised in allother EU Member States. Provided it originates from a State bound by theapplicable law rules of the 2007 Hague Protocol (i.e. all EU Member States,except the UK and Denmark), it can be enforced in all EU-States without theneed for an Exequatur. Decisions from the States not bound by the 2007 HagueProtocol can be declared and enforceable in accordance with section 2 ofchapter 4 of the Regulation.Enforceable court settlements and authentic instruments originatingfrom an EU Member State are automatically recognised in other EU Member Statesand are enforceable there in same way as decisions, Article 48 of theRegulation.
Recognition and enforcement Outside the EU
For the recognition and enforcement of a court decision from an EU MemberState in States outside the EU, a number of international instruments can be ofassistance. The substantive, geographic and temporal scope will determine theirapplicability in the individual case. The 2007 Hague Maintenance Convention, inforce in the EU (except Denmark) and in 13 further States (status 15 July 2019)has the potential to replace in the long run most of the older internationalinstruments. Its substantive default scope is not as wide is that of the MaintenanceRegulation but can be extended by States joining the Convention (see aboveparagraph 44).Even though the 2007 Hague Convention does not include direct ruleson jurisdiction cross-border recognition of decisions is made dependent on theobservance of certain indirect rules of jurisdiction listed in Article 20(1) ofthe Convention.
Divorce
Relevant instruments,scope and interrelation
The Brussels IIa Regulation contains rules on international jurisdiction for matters of divorce and legalseparation as well as rules on recognition. As stated above, all EU MemberStates except Denmark are bound by the Brussels IIa Regulation.
The Brussels IIa (recast)Regulation has the same substantive and geographic scope of application asthe Brussels IIa Regulation which it will replace as of 1 August 2022 forproceedings instituted as of that date.
The Rome III Regulation contains rules on applicable law and has been set up in enhanced cooperation,i.e. only certain Member States decided to adopt this instrument. Any EU MemberState can join the enhanced cooperation at a later. Currently (May 2019), the following EU States are bound: Austria, Belgium, Bulgaria, Estonia, France,Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxemburg, Malta, PortugalRomania, Slovenia and Spain.
The Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations currently (15July 2019) has 20 Contracting States including the following 13 EU MemberStates: Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg,the Netherlands, Poland, Portugal, Slovakia, Sweden and the UK. The Convention further applies in Albania, Australia, China (Hongkong), Egypt, Norway, the Republic of Moldova and Switzerland).[1] The Convention merely contains rules on recognition of divorce and legal separation but no rules on jurisdiction and applicable law. In relation as between EUMember States recognition rules of the Brussels IIa Regulation prevail, Article60 c) of the Regulation; an equivalent rule is contained in Article 94 c) of the Brussels IIa (recast) Regulation.
International jurisdiction
Authorities in all EU Member States, except Denmark, are bound bythe rules of the Brussels IIa Regulation on international jurisdiction inmatters of divorce and legal separation. Recourse to domestic rules oninternational jurisdiction is only possible in accordance with the restrictiveconditions set forth in Articles 6 and 7 of the Regulation.The Regulation provides in its Article 3 for are a number ofalternative grounds of jurisdiction, including the creditor’s habitualresidence and the defendant’s habitual residence. The Brussels IIa (recast) Regulation generally maintains theserules, but merges Articles 6 and 7 of the predecessor Regulation in one singleArticle. Applicable lawThe law applicable to divorce and separation is determined inaccordance the Rome III Regulation in all EU Member States bound by thisRegulation. Recognition within the EU(except Denmark)Once a decision on divorce or legal separation isrendered in an EU Member State (except Denmark) it is automatically recognisedin all other EU Member States (except Denmark), 21(1) Brussels IIa Regulation. An equivalent rules is contained in Article30(1) of the Brussels IIa (recast) Regulation.
[1] See fordetails the status table at the Hague Conference website at < https: www.hcch.net="" en="" instruments="" conventions="" status-table="" ?cid="80 ">.</ https:>
Recognition outside the EU (in Denmark)
When it comes to the recognition of a decision on divorce and legalseparation rendered in a EU State in a State outside the EU or in Denmark, theHague Convention of 1 June 1970 on the Recognition of Divorces and LegalSeparations can be of assistance, provided the Convention is in force betweenthe State from which the decision originates and the State of recognition.
Matrimonial property regime & registered partnership property regime
Relevant instruments
The Marital Property Regime Regulation and theRegistered Partnership Property Regime Regulation have both been adopted inenhanced cooperation. Only Austria, Belgium, Bulgaria, Croatia, Czech Republic,Cyprus, Finland, France, Germany, Greece, Italy, Luxemburg, Malta, Netherlands,Portugal, Slovenia, Sweden and Spain are bound by these Regulations. TheRegulations follow the same structure and contain to some extent identical orparallel rules. Both regulate international jurisdiction, applicable law andrecognition and enforcement.
Domestic law differs considerably when it comes to the options available to render family agreement legally binding and enforceable. Where a family agreement concerns two or more legal systems and shall acquire binding force there, one could, in theory, turn to each legal system in order to obtainen forceability in accordance with domestic provisions. This would not only be cumbersome but also costly and time-consuming. In addition, where theconnection with one of the legal systems before the agreement’s implementationis not yet established (for example, parents agree on cross-border contactbetween father and child before the child’s relocation with the mother toanother State) the legal system concerned might refuse access to domestic lawprocedures due to the lacking current connection. Ideally, the international family agreement should be renderedlegally binding and enforceable in one legal system and obtain, with that samestep, recognition in all legal systems concerned. This is possible whereEuropean and international legal instruments provide pertinent rules forcross-border recognition that can be used to make the agreement, or at leastthe agreement’s content embodied in a decision, travel cross-border. Traditionally, international family law instruments are centred onthe recognition of court “decisions”. However, with the growing acceptance ofparty autonomy in family law on the national and international level muchattention has been given to provide the required flexibility of European andinternational legal framework facing this development. Besides choice of lawand choice of court provisions, many modern European and international familylaw instruments today also respect agreement on the substance found by those indispute and allow those agreements under certain conditions to travelcross-border. Since nonetheless, international and European legal framework in thearea of family law is still majorly marked by the traditionaldecision-centred-approach, there are some advantages in using this well pavedavenue for the recognition of agreements, which of course requires theagreement to be “transformed” into a decision as a first step.As explained above, for the sake of this Best Practice Tool two“Methods” shall be distinguished to make an agreement travel cross-border:
Method A: Using the mechanisms of European and international legal framework for cross-borderrecognition of “decisions”
Method B: Using the mechanisms of European and international legal framework for the cross-border recognition of “authentic instruments” / “enforceable agreements”
Method A - Overview
When using Method A, the agreement must first be “transformed” in to a decision that embodies the content of the agreement. To benefit from European and international recognition and enforcement provisions, the decision must stem from the “right starting point legal system” (see further below). How the agreement might be “transformed” into a decision depends on the domestic law of the “starting point jurisdiction”. Options available in domestic law vary: It may be possible to seize the court in order to turn the agreement into a decision and / or to request the court to homologate or approve the agreement. The options available in domestic law of Germany, Italy,Poland and Spain are described in the relevant National Best Practice Tools. For the result of the homologation or approval of an agreement by a court to be characterised as a “decision” in the sense of the above “Method A”,an examination of the substance is to be requested.The “right starting point jurisdiction” is to be explored in accordance with the rules of international jurisdiction of the European or international legal instruments that are meant to make the decision travelcross-border. That is to say, the State whose authorities have international jurisdiction under the relevant international and European instrument regarding the subject matters at stake has to be identified. This is the State in which the agreement should be turned into a court decision. As shown above, the rules on international jurisdiction contained in the different European and international family law instruments differ considerably. Where the agreement contains a several subject matters falling within the scope of different of these instruments, the “common denominator”has to be found. Where the agreement deals with a number of family law matters comprising matters of parental responsibility, the State of habitual residence of the child will most likely be the ideal “starting point jurisdiction” (see below).However, a detailed analysis of the legal situation should be complemented by inquiries into the possible procedural history of the individual case. Where the court of one State is already seized with one of the matters dealt with in the agreement, the abstract determination of the “ideal startingpoint jurisdiction” would not be expedient. Here the question should rather be,whether the court seized could assume international jurisdiction on all matters covered by the agreement in order to end the case with a consent order on all subject matters the agreement covers. Where this is not possible, different options will have to be explored. The agreement could possibly be rendereden forceable partially in front of the foreign court and partially in the State of habitual residence of the child. Or the foreign proceedings could be with drawn etc.
Method B - Overview
Using Method B aims to benefit in particular from the followingprovisions of European and international instruments regarding matters ofparental responsibility and maintenance: Article 46 Brussels IIa Regulation,Article 48(1) of the Maintenance Regulation and Article 30 of the 2007 HagueConvention.It has to be noted that in comparison to Method A, using Method B isless clear-cut since the mechanisms to make enforceable agreements travelcross-border differ from instrument to instrument. Furthermore, theinstruments, regularly do not provide for specific rules of recognition andenforcement for agreements but rather declare the rules of recognition andenforcement of decisions as accordingly applicable, which leaves a number ofquestion unanswered and is emblematic for the second-class status agreementsstill have in European and international legal framework in comparison todecisions. Both, the Maintenance Regulation and the Brussels IIa Regulation canbe used to make an agreement formally drawn up or registered as “authenticinstrument” travel cross-border. The Brussels IIa Regulation furthermore, offersthe same mechanism to “agreements between the parties that are enforceable inthe Member States”. The Maintenance Regulation arrives at a similar result,since the definition of authentic instrument in Article 2(3) of the MaintenanceRegulation make it clear that this term shall also include “an arrangementrelating to maintenance obligations concluded with administrative authoritiesof the Member State of origin or authenticated by them”. Article 30 of the 2007 Hague Convention,which - as an exception of the above said - provides a separate set of rulesfor the cross-border recognition of agreements, allows so-called “maintenancearrangements” to travel cross-border. A “maintenance arrangement” are definedas “agreement in writing relating to the payment of maintenance which i) has been formally drawn up or registeredas an authentic instrument by a competent authority; or ii) hasbeen authenticated by, or concluded, registered or filed with a competentauthority, and may be the subject of review and modification by a competentauthority”, Article 3 e) of the 2007 Hague Convention. It thus also includes “authenticinstruments”. As an initial question, it has to be considered whether the rules ofinternational jurisdiction for the matters covered by the agreement are ofimportance when using Method B. The answer this question, the individual rulesset forth by the relevant European and international instruments in relation torecognition and enforcement of authentic instruments and enforceable agreementsneed to be explored. Article 46 Brussels IIa Regulation states that authentic instrumentswhich are enforceable in one EU Member State as well as agreements between theparties enforceable in the Member State where they were concluded, can berecognised and declared enforceable underthe same conditions as judgements. Even though the system of simplifiedrecognition and enforcement among States bound by the Regulation is based onmutual trust and the general respect of the obligatory rules on internationaljurisdiction, the Chapter on recognition and enforcement does not allowquestioning international jurisdiction and does not make the respect for therules of international jurisdiction a condition for recognition andenforcement. The referral in Article 46 of the Brussels IIa Regulation leavesus without explicit answer to the question, whether the authority setting up orregistering the authentic instrument is bound by the rules of internationaljurisdiction. Here we have one of the above-mentioned shortcomings in thecurrent EU legislation, which leaves an important aspect of cross-borderrecognition of agreements to interpretation. On the one hand, Article 46 of the Brussels IIa Regulation might beread to mean that the authentic instrument or enforceable agreement couldoriginate from any EU Member Stateindependent of the rules on international jurisdiction. On the other hand, the Regulation’srules of international jurisdiction are of central importance in the Regulationand a prorogation of the predominant jurisdiction lying with the authorities ofthe State of habitual residence of the child is despite the parents agreementonly permitted if in the best interests of the child. It is therefore highlyquestionable whether Article 46 wants to allow parties to “circumvent” theserules by setting up an “authentic instrument” instead of going to court andthen have the “authentic instrument” freely circulate in all Brussels IIaStates. Article 48(1) of the Maintenance Regulation declares the rules onrecognition and enforcement of the Regulation applicable to authenticinstruments. As in the Brussels IIa Regulation, the Chapter on recognition andenforcement does not make the respect of rules on international jurisdiction anexplicit condition for the recognition and enforcement. A similar uncertaintyexists thus regarding the need to respect the rules of internationaljurisdiction in the establishment of the authentic instrument. However, in viewof the extensive list of grounds of jurisdiction contained in Article 3 of theMaintenance Regulation and the granted party autonomy to freely choose amongthe listed grounds of jurisdiction, avoiding circumvention of crucial rules ofjurisdiction is less an argument here. Article 30 of the 2007 Hague Maintenance Convention provides for therecognition and enforcement of so called “maintenance arrangements”, see definitionparagraph 86.Article 30 of the 2007 Hague Convention contains a specific set of rules forthe cross-border recognition of maintenance arrangements. These rules declare Article20 of the Convention, containing the Convention’s indirect rules ofjurisdiction, inapplicable, see Article 30(5) of the Convention. Consequently,maintenance arrangements set up in any State bound by the Convention will berecognised any other Contracting States, provided the Contracting Statesconcerned have not made a reservation in accordance with Article 30(8) of theConvention to not recognise maintenance arrangements at all.
The relocation agreement in this Best Practice Tool is meant to be understood as an agreement in the situation of an envisaged lawful relocation of a minor child together with one of his / her parents from one country to another.As a result of the lawful relocation, the habitual residence of the child and the relocating parent will change. Such cases are not rare in practice. It maybe that following the breakdown of the parents’ relationship one parent wishes to go back to her / his home country or to leave to another country for professional reasons. In such a situation a parental agreement might contain the following subjects:
a. with whom the child with live;
b. how cross-border contact between the child and the parent remaining in the other State will be organised;
c. how contact with the grand-parents will be organised;
d. what amount the parent living with the child will obtain from the other for child related expenses;
e. whether periodic payment will be owed by one spouse (or ex-spouse) to the other; and
f. who will be paying the travel costs for parent-child visits.Additional points might relate to ending the relationship as a couple, agreeing to file for divorce, regulating property issues etc.For the purpose of the Best Practice Tool, it is assumed that the parents(nationals from different States) and the child are currently habitually resident in an EU Member State (not Denmark), namely … and that they want to relocate anotherEU-Member State except Denmark.
Method A
In method A, we use the “shape” of a court decision to make the agreement’s content travel cross-border. We therefore have to turn the agreement into a court decision and then to obtain recognition and enforceability of the agreement abroad with the help of the European and international legal framework.
Indentifying Subject Matters Contained in agreement
As the first step, the subject matters dealt with by the agreementhave to be analysed to see which legal category they can be affiliated with. Inparticular, can they be characterised to fall generally under the category of mattersof:
“parental responsibility” - (a.-c.)(f. possibly, see below) ·
“child maintenance” - (d.) (f.possibly, see below)·
“spousal maintenance” - (e.) I
n the above example agreement (see paragraph 95),clearly the terms of the agreement summarised under a. and b., i.e. all questionsrelating to where and with whom the minor child will live as well as relatingto parent-child contact can be qualified as matters of parental responsibility.Here, we can assume a common understanding of terminology in national andinternational family law. When it comes to contact between grandparents and grandchild (c.),not all national laws might understand this as part of “parentalresponsibility”. However, when considering the applicability of European andinternational legal framework regarding international jurisdiction andcross-border recognition, the autonomous understanding of the term “parentalresponsibility” used by the relevant instruments is decisive. As confirmed bythe CJEU (C-335/17 of 31 May 2018), the autonomous concept of “right of access”under the Brussels IIa Regulation encompasses also grandparents’ rights ofaccess. The same will apply for the new Brussels IIa (recast) Regulation. Who is to pay for travel costs associatedwith parent-child visits (f.) regularly plays a central role in relocationagreements. Subject to the distance between the two States concerned, thetravel costs can be considerable. Depending on the details of the agreement andcircumstances of the case, travel costs might be characterised to be part ofthe “exercise of parental responsibility” or be part of “child maintenance”.The former characterisation could be argued where the provision of funds fortravelling is considered indispensable for the exercise of contact. The lattercould be justified where the payment of extensive travel costs by the parentsowing maintenance is taken into consideration as weighing on that parent’sfinancial capacity and counted as part of that parent’s contribution to childrelated expenses. The terms of the example agreement summarised under d. can bequalified as “child maintenance”, those under e. as “spousal or / ex-spousalmaintenance”. Under certain condition, an agreement on a lump sum paymentbetween spouses upon their separation could also be characterised to fall under“maintenance”, see above “Definitions” at paragraph 3.
Identifying relevant European and international legal framework
As the next step, the European and / or international legal instruments relevant to the category of subject matters determined above can beidentified: · “parental responsibility”(a.-c.) – Brussels IIa Regulation[1],1996 Hague Convention
· “child maintenance” (d.) –Maintenance Regulation, 2007 Hague Convention & other
· “spousal maintenance” (e.) –Maintenance Regulation, 2007 Hague Convention & other
When having identified in which States the agreement must be bidingand enforceable, the geographic scope of the above instruments must be tested,i.e. it must be explored whether the pertinent European or internationalinstrument are in force between these legal systems. In our example case above, the State of habitual residence of thefamily is an EU Member State (not Denmark), namely …. The State of relocation is another EU MemberState (not Denmark). For matters of parental responsibility, the Brussels IIa Regulationis the relevant instrument in force between the two States concerned. TheRegulation has predominance over the provision of the 1996 Hague Convention.However, the Brussels IIa Regulation only contains rules on internationaljurisdiction and recognition and enforcement, 1996 Hague Child ProtectionConvention remains relevant in inner-European cases when it comes to determinethe applicable law (see for further details above paragraphs 26 et seq.).For matters of child and spousal maintenance, the MaintenanceRegulation is the applicable instrument in our case. The 2007 Hague Conventionand possibly other international instruments for the recovery of maintenanceabroad would only come to play, should enforcement outside the EU be required.
[1] In the future Brussels IIa (recast) Regulation.
Identifying starting point jurisdiction
The rules of international jurisdiction for matters of
· “parental responsibility” (a.-c.)- are contained in Articles 8 et seq.of the Brussels IIa Regulation;
· “child maintenance” (d.) and“spousal maintenance” (e.)
– are contained in Article 3 et seq. of the Maintenance Regulation.The ideal starting point jurisdiction in our example constellation,is the State of the habitual residence of the child, namely …: international jurisdictionfor matters of parental responsibility is generally given in that State inaccordance with Article 8 of the Brussels IIa Regulation and for matters ofmaintenance in accordance with Article 3 of the Maintenance Regulation.However, is it of crucial importance to explored whether proceedingsin one of the legal matters covered by the agreement are already pending inanother State. Should this be the case it will have to be seen whetherinternational jurisdiction can be assumed by the foreign court for all matterscovered by the agreement in decision to turn the agreement into the courtdecision. Where this is not possible, different options will have to be explored.The agreement could possibly be rendered enforceable partially in front of theforeign court and partially in the State of habitual residence of the child. Ofthe foreign proceedings could be withdrawn etc.
Identifying competent authority/authorities in accordance with national law
Important information on the proceedings in State
Identifying necessity of additional steps to secure cross-border recognition and enforcement under theEuropean / international legal framework (Assuming State … would be the foreignState of enforcement)
Method B
In Method B, we make the relocation agreement travel cross-border inform of an authentic instrument or as enforceable agreement. To obtain anauthentic instrument, it is necessary to either draw up the agreement asauthentic instrument or register it as such (see for the definition of anauthentic instrument above paragraph 6). Whetherand under which conditions such an authentic instrument can be obtained dependson the relevant domestic law. The domestic law might also offer the possibilityto render the enforceable through a different process.
Indentifying Subject Matters contained in agreement
As under Method A, we need to start with identifying the subject matters dealt with by the agreement and to determine the legal category they can be affiliated with. In particular, whether they can be characterised to fall generally under the category of matters of:
· “parental responsibility”(a.-c.) (f. possibly, see paragraph 100)
· “child maintenance” (d.) (f.possibly, see paragraph 100)
· “spousal maintenance” (e.)
Indentifying relevant European and international legal framework
In accordance with the category of subject matters determined above,the European and / or international legal instruments relevant to these matterscan be identified:
· “parental responsibility”(a.-c.) - Brussels IIa Regulation, 1996 Hague Convention
· “child maintenance” (d.) –Maintenance Regulation, 2007 Hague Convention & other
· “spousal maintenance” (e.) –Maintenance Regulation, 2007 Hague Convention & other
When having identified in which States the agreement must be bidingand enforceable, it must be explored whether the pertinent European or international instrument are in force between these legal systems. In our sample case above, the State of habitual residence of the family is an EU Member State (not Denmark), namely …. The State of relocation is another EU MemberState (not Denmark).
Indentifying a starting point jurisdiction
As stated above, it may be argued that neither the Brussels IIaRegulation nor the Maintenance regulation make recognition and enforcement of authentic instruments dependent on the respect of the Regulations’ rules on international jurisdiction. Similarly for enforceable agreements drawn up in front of an authority. Following this reasoning, the starting point jurisdiction is not necessarily depending on the rules of international jurisdiction of these instruments. However, in view of existing doubt, particularly regarding the permission to leave aside the international jurisdiction rules of the Brussels IIa Regulation, and also in view of facilitating a possible required recognition and enforcement outside the EU at a later stage[1],the Best Practice Tool recommends considering the rules of international jurisdiction on order to obtain a sustainable result. The ideal starting point jurisdiction is the State of habitual residence of the child as starting point jurisdiction. Therefore as starting point jurisdiction in our constellation theState of the habitual residence of the child, namely … shall be chosen.
[1] When wanting to have the agreements concluded in front of an authority travel cross-border as “child protection measure” under the 1996Hague Convention the Convention’s rules on international jurisdiction have tobe respected, see Article 23(2)a) of the Convention.
Available Options to set up an authentic instrument in State/Obtain an enforcable agreement
Important information on the process in State
Identifying necessity of additional steps to secure cross-border recognition and enforcement under theEuropean / international legal framework (Assuming State … would be the foreignState of enforcement)
A cross-border contact case and / or cross-border maintenance caseis meant to refer to a situation where one parent and the minor child havetheir habitual residence in a State other than that of the other parent’shabitual residence and the parents are in dispute over contact and / ormaintenance. For purpose of the Best Practice Tool, the following example caseshall be analysed here: Mother and child are currently habitually resident inan EU Member State (not Denmark), namely … and the father is habitually resident in anotherEU-Member State (not Denmark). To settle a dispute over contact and maintenancethe parents have concluded an agreement containing roughly the following subjects:
a. how contact between father and childwill be organised, i.e. when the father will come to visit the child and whenthe child will travel abroad for contact visits; b. how contact with the paternalgrand-parents in the other State will be organised;
c. what amount of child maintenancewill be paid; and
d. who will be paying the travel costs. To avoid repetition, only the differences in comparison withSituation I: Relocation Agreements shall be explored in this chapter.
Differences in comparison with situation I
In contrast to Situation I, the parties do not have their habitualresidence in the same State. This has an influence on the analysis of rules ofinternational jurisdiction and thus affects the identification of the “startingpoint jurisdiction”. As stated above, when the parents have agreed among other matters onmatters of parental responsibility, the ideal stating point jurisdiction is theplace of the habitual residence of the child. In our example case this would be… If the agreement is purely on matters of maintenance, it is left tothe parties’ convenience in which State they want to first render theiragreement enforceable. …(Are there national lawparticularities in this situation that should be mentioned?)
Method A
Particularities regarding international jurisdiction
Options available should State … be the State of Hague return proceedings
Options available should State … be the State of return
Particularities regarding international jurisdiction
Options available should State … be the State of Hague return proceedings
Even though all modern European and international legal instrumentsexpressly aim to promote agreed solutions of international family law disputes andwant to enable certain categories of enforceable agreements to travelcross-border, they visibly focus on the cross-border recognition of decisionsand are not entirely adapted to accommodate the cross border recognition onfamily agreements. Most of them do not set up unique provisions on recognitionand enforcement of agreements but instead refer to the rules on recognition ofdecisions. The latter provisions are however not adapted for this use.Emblematic is that they refer to the parties as “applicant” and “respondent” or “defendant” which makes nosense for the recognition of agreements where parties might not have startedwith adversary proceedings in the first place. Furthermore, familyagreements resulting from mediation or similar alternative dispute resolutionmechanisms are likely to touch upon a number of family law matters which wouldnot necessarily fall within the material scope of the same European orinternational instrument.
How to integrate the offer of specialised mediation in the setting of Hague return proceedings? How to integrate the offer of specialised mediation in the setting of Hague return proceedings?